NY Primer for PA Counsel

A New York Primer for Pennsylvania Counsel

1. Auto Insurance Differences.

Similar to Pennsylvania, New York is a no-fault state. Pursuant to New York State Insurance Law, every owner of a motor vehicle is required to purchase no-fault insurance which provides statutory benefits for a person injured while operating or occupying the vehicle. These benefits are described in various ways to include, first party benefits, basic economic loss, no-fault benefits or PIP (personal injury protection) benefits. Unlike PA, wage loss is an automatic part of New York's no-fault law. New York's minimum no-fault limits are $50,000.00 available for a combination of wage loss or medical and like expenses which is defined as "basic economic loss". These benefits are payable to the injured person regardless of fault. However, an application for first party benefits or no-fault application must be filed within 30 days of the accident. Failure to file the application within that time period can result in a denial of all benefits. In addition, medical care providers must also submit bills within 45 days or those bills can be denied as untimely.

New York's order of priority for the payment of first party benefits is also different than Pennsylvania. In New York the insurer for the vehicle which the injured party is operating or occupying pays first. In addition, a pedestrian's no-fault benefits are paid by the vehicle that struck him. Unfortunately, there is typically no no-fault coverage available for a motorcycle operator and there are also different rules for occupants of a bus.

When purchasing or renewing an auto policy in New York, most if not all insurers also offer the opportunity to purchase APIP (Additional Personal Injury Protection) benefits or OBEL (Optional Basic Economic Loss) benefits at a minimal charge. This provides additional coverage for medical expenses and loss of income. With regard to OBEL coverage it can also provide additional compensation for loss of wages where the injured party is a high earner as under the PIP protection loss of earnings is limited to two thousand dollars per month for no longer than three years.

While the No-Fault system provides some protection to innocent, injured parties, it also provides a limitation on the recovery for pain and suffering. Specifically, in order to recover any compensation for the person's pain and suffering it must be shown that they suffered a" serious injury" in all cases. There is no full tort/limited tort system in New York and all claims are governed by the "serious injury threshold". Serious injury is defined by the statute and has been interpreted by an enormous amount of case law. A serious injury includes obvious categories such as death, dismemberment, significant disfigurement (such that the injured party would be subjected to scorn or ridicule), a fracture, loss of a fetus, or permanent loss of use of a body organ, member, function or system. In addition there are several areas requiring a combination of medical and layperson testimony. Each of the following constitute a serious injury; a medically determined injury in which the injured party is unable to perform substantially all of their usual and customary daily activities for at least ninety out of the first one hundred eighty days following injury; permanent consequential limitation of use of a body organ or member; and significant limitation of use of a body function or system. The final three categories have been the subject of thousands of appellate decisions adding "gloss" to each criterion. Currently, the courts stress that there must be medical findings with objective evidence. Foe example, with regard to limitation of use, there must be a showing of the loss of range of motion compared to normal and an explanation of any gaps in treatment.

The minimum liability limits in New York are $25,000.00 per injured person and $50,000.00 per occurrence. In addition there is $100,000.00 minimum available for a death case.

New York's Underinsured Motorist Provisions are also drastically different than Pennsylvania's. New York commonly refers to such claims as SUM (Supplementary Uninsured Motorist) claims. Such claims are governed in large part by regulation 35D of the New York State Insurance Regulations. New York specifically allows any recovery from the tortfeasor to be offset against the limits of the underinsured claim. For example if the tortfeasor has $25,000 in coverage and the plaintiff has $100,000 in SUM coverage, the maximum he could recover under the SUM claim would be $75,000. In addition, consent must be obtained from the SUM carrier before settling with the tortfeasor and you must obtain every penny of the tortfeasor's liability policy to even trigger SUM coverage. Unlike, PA, the SUM claim cannot be settled before the claim with the tortfeasor by offering a credit for the tortfeasor's limits. Also, if suit is brought against the tortfeasor a copy of the summons and complaint must be sent to the SUM carrier. If the SUM claim cannot be resolved it is submitted to binding arbitration pursuant to the American Arbitration Association rules, which provide for one arbitrator who typically serves a set geographic location in New York. Neither party has any input into which arbitrator serves. There are limited appeal rights from an arbitrator's decision. Please also note, that in the case of multiple tortfeasors, the plaintiff need only exhaust one of the policies to seek SUM benefits, but if the plaintiff settles with any of the tortfeasor's for less than the policy limits they cannot then present a SUM claim.

2. New York State's Labor Law

New York's various Labor Law statutes provide extraordinary protection for those injured in construction type activities. Most significantly, the Labor Law provides protection for workmen who are injured when they fall from a height or something that is being hoisted or lifted falls on them. Pursuant to the Labor Law, the property owner is strictly liable for any such injuries occurring from either a falling person or falling object. In addition, comparative negligence is not a defense. Simplified, all the plaintiff needs to show is that he was injured by the force of gravity due to the lack or failure of a safety device. Most cases are resolved by an entry of Summary Judgment on liability for the plaintiff. Please note, however, that there are many complicating factors and various defenses raised by defense counsel, to include that the plaintiff's actions were the sole proximate cause of his injury, that the workmen was a recalcitrant worker and failed to use an available safety device, or that the activity was not a protected activity.

Section 241(6) of the Labor Law also provides extraordinary protection for construction workers. This portion of the Labor Law allows a plaintiff to introduce evidence that an industry standard was violated, exposing the property owner to liability. However, the plaintiff needs to point out a specific code violation that was violated. In addition, comparative negligence is an available defense. There is extensive case law on what Code sections are specific enough to constitute a foundation for liability and numerous intricacies in the presentation of proof.

3. New York Statute of Limitations

Intentional Injury to Person = 1 year. See, CPLR § 215

Negligent Injury to Person = 3 years. See, CPLR § 214

Libel/Slander = 1 year. See, CPLR § 215

Fraud = 6 years. See, CPLR § 213

Injury to Personal Property = 3 years. See, CPLR § 214

Professional Malpractice = 3 years. See, CPLR §214

Medical Malpractice = 2 1/2 years. See, CPLR §214

Trespass = 3 years. See, CPLR § 214

Collection of Rents = 6 years. See, CPLR § 213(1)

Contracts Written/Oral = 6 years. See, CPLR §213

Collection of Debt on Account = 6 years. See, CPLR § 213(1)

Judgments = 20 years. See, CPLR § 211(b)

4. Municipal Claims

Under New York practice any claim made against a municipality to include the State of New York requires that a notice of claim be served on the municipality within 90 days from the date of the incident. If a notice of claim is timely served on the municipality then suit must be commenced within 1 year and 90 days for a municipality and within 2 years for the State of New York. If the notice of claim is not timely filed, permission can still be sought from the Court to late file the claim. In deciding whether to grant the motion the Court looks at whether the municipality has been prejudiced by the late filing, i.e. did the municipality have notice of the claim or did it conduct an investigation and what excuse the claimant has for failing to file (minority, illness, etc.)

Under New York Law, any claim brought against the State of New York must be tried in the Court of Claims. In the Court of Claims the case is decided by a judge without a jury. A municipality, other than the State, can be sued in other courts, typically Supreme Court. Note that a State employee named individually in a suit can also be sued in "regular" court. For example if an action is brought against a State Police Officer for negligence, any claim naming the State as a defendant must be filed in the Court of Claims, but the officer himself can be sued at the same time in another court.

Once a notice of claim is filed, before suit can be commenced, the municipality is given ninety (90) days to investigate the claim and depose the claimant by way of what is known as a 50-H hearing. The municipality can of course waive the requirement and if it does not notice the deposition or 50-h hearing, suit can be filed after 90 days.

5. Comparative Negligence and Joint and Several Liability

New York is considered a pure comparative negligence state. In a trial a jury can assess fault amongst the plaintiff and defendant or defendants and if the defendant is found 1% at fault then the plaintiff is entitled to recover 1% of his damages from the defendant.

New York has abolished joint and several liability for non-economic damages, but with numerous exceptions. These exceptions include motor vehicle liability, non-delegable duties and intentional acts. As such, in a typical automobile case if the defendant is found 1% at fault with additional defendants found 99% at fault the plaintiff can collect all of his damages from the 1% at fault defendant. Of course that defendant can seek reimbursement from the other defendants for payment of the amount of damages not attributed to his fault.

6. Wrongful Death

New York's statute of limitations for wrongful death is 2 years from the date of death. Unfortunately, New York's wrongful death statute is barbarous as New York law limits damages to pecuniary injuries, which means economic loss. A jury may not consider or make any award for sorrow, mental anguish, injury to feelings or for loss of companionship. A jury is instructed to consider the services that the decedent provided to the family and the portion of the decedent's earnings that they would have spent in care and support of the family. As you can imagine in the case of young children or elderly individuals the appellate awards are very limited with the typical maximum recovery in the one hundred to three hundred thousand dollar range.

New York does, however, recognize causes of action for pre-death pain and suffering as well as pre-impact terror. Even momentary pain and suffering has resulted in significant verdicts that have withstood appeal. In addition there have been six figure verdicts upheld for pre-impact terror, or that fleeting moment when the decedent knows they are about to die.

7. Court System

In New York, there are typically only three levels of courts utilized in a personal injury case. The first level is the general trial court level called the Supreme Court. This is equivalent to the Court of Common Pleas. If a case is appealed from Supreme Court, it is typically sent to the Appellate Division in which that Supreme Court sits. For our area, we are typically in the Fourth Department Appellate Division. If a case is appealed from any appellate division, you go to our state's highest court level, the Court of Appeals. For an overview of New York's court system, go to: www.courts.state.ny.us/.